Welcome and thank you for your interest. You are reviewing these Terms of Use because you use or have purchased, or are considering purchasing or using Health Function’s online services (the “Services”, “YourPersonalizedHealth”, “SleepPerformance”) and related website at www.yourpersonalizedhealth.com (the “Website”)

The Services have been developed and are owned by Health Function, which is referred to as “we”, “us” or “our” in these Terms of Use. You are referred to as “you” or “your” in these Terms of Use.

THESE TERMS OF USE ARE A LEGAL AGREEMENT BETWEEN YOU AND SERVICES. PLEASE READ THEM THROUGH CAREFULLY BEFORE USING ANY SERVICES.

By using any Services you signify your agreement to these Terms of Use (the “Terms of Use”). If you do not agree to these Terms of Use, you may not use the Services and should not purchase the Services.

Changes to Services and Terms

We may change or discontinue, in whole or in part, the Services at any time without notice. You acknowledge that we are not liable to you or to any third party for any such action.

We may modify these Terms of Use from time to time. The most current Terms of Use will be available on the Website and the date of the latest update is indicated at the top of these Terms of Use. We may communicate major changes with a special notice on the Services or by email. You accept such modified Terms of Use by continuing to use of the Services.

Requirements for Use of the Services

You represent and warrant that:

(1) all registration information you submit will be true, accurate, current, and complete; and(2) you will maintain the accuracy of such information and promptly update such registration information as necessary; and (3) you have the legal capacity and you agree to comply with these Terms of Use; and(4) you are aged 20 years or older and have the legal authority to accept these Terms of Use on your own behalf or any party you represent; and(5) you will not access the Services through automated or non-human means, whether through a bot, script, or otherwise; and(6) you will not use the Services for any illegal or unauthorized purpose; and (7) your use of the Services will not violate any applicable law or regulation; and(8) you are not pregnant, breastfeeding, being treated for cancer, undergoing gender reassignment treatment, within the period of 2 weeks prior to surgery or 6 weeks after surgery.

If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).

The full experience requires the Services, Internet access to the Services and Website, and other required software (if any). You are responsible for obtaining your own Internet access and mobile device to access the Services.

User Registration

You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.

Payments

Premium service fees (e.g. Oura Ring linkage) in NZD are non-refundable and subject to change without notice.

Precautions

Please note that Services are not intended to diagnose, treat, cure, or prevent any disease or medical condition. The information and guidance in the Services are there for informational purposes only and cannot replace the services of health professionals or physicians. You should always consult a physician before making any changes to your sleep or activity based on information or guidance of the Services, or if you have any questions regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on or through the Services. We are not responsible for any health problems that may result from information or guidance you learn about through the Services. If you make any change to your sleep or activity based on the Services, you agree that you do so fully at your own risk. It is important to be sensitive to your body’s responses. For example, if you feel unexpected, repeating or long term pain, fatigue or discomfort due to having made changes to your sleep or activity, it is recommended that you consult a physician before continuing with such changes. The information and guidance in the Services may be misleading if your physiological functions and responses differ significantly from population averages due to medical conditions or rare natural differences.

Privacy Policy

The Services are subject to the Privacy Policy.

Limited License and Ownership of the Services

You are hereby granted a non-exclusive, revocable and nontransferable license to use the Services in accordance with these Terms of Use.

Health Function or its licensors own all title and rights to the Services, including, but not limited to all copyrights, trademarks, know-how and other intellectual property rights included therein. You may not reproduce (whether by linking, framing or any other method), transfer, distribute, store, modify, decompile, disassemble, or create derivative works of, publicly display, or commercially exploit any part of the Services except as necessary to display, download or print (without modification) for your own non-commercial use. All rights in the Services not expressly granted to you by Health Function are retained by Health Function and its licensors. Violation of any of these Terms of Use gives Health Function sole discretion to refuse or terminate access to the Services effective immediately. In such an event you are obliged to immediately destroy any copies you have made of any portion of the Services.

You grant Health Function a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, or feedback you provide relating to the operation of the Services unless you specify otherwise in writing.

Usage Limitations

The Services are subject to usage limitations, with extraordinary usage potentially incurring additional charges or suspension of service. Specifically you agree not to interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services.

Indemnity

You agree to defend, indemnify and hold Health Function and its partners, affiliates, service providers, licensors, officers, directors, employees and agents harmless from and against any claims, actions or demands, including but not limited to reasonable legal and accounting fees, alleging or resulting from: (a) your violation of these Terms of Use; or (b) your violation of Health Function’s intellectual property rights, any third party rights or any applicable law when using the Services.

Third Party Services

To increase value to our users, we may provide links or references to third party websites or services within the Services. We have no control of such websites or services and do not assume any responsibility or liability for any damage or loss of any kind for or due to their content, functionality, or practices. If you decide to access these third party websites or services, you do so at your own risk. We suggest that before using these third party websites or services you read their terms of use and privacy policies (if any).

Content and Warranty Disclaimer

EXCEPT FOR THE LIMITED WARRANTY FOR THE SERVICES SET FORTH BELOW, THE SERVICES ARE PROVIDED BY HEALTH FUNCTION AND ITS AFFILIATES “AS IS.”

NEITHER HEALTH FUNCTION NOR ITS PARTNERS, SUPPLIERS, OR AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES, ITS CONTENTS, OR ANY INFORMATION MADE AVAILABLE BY OR THROUGH THE SERVICES. IN ADDITION, HEALTH FUNCTION AND ITS PARTNERS, SUPPLIERS AND AFFILIATES DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHERMORE, HEALTH FUNCTION DOES NOT WARRANT THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, AVAILABLE AT ANY TIME OR FROM ANY PARTICULAR LOCATION, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS.

Limitation of Liability

IN NO EVENT WILL HEALTH FUNCTION OR ANY OF ITS DIRECTORS, EMPLOYEES OR AFFILIATES BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE HEALTH FUNCTION SERVICES, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT HEALTH FUNCTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF HEALTH FUNCTION, ARISING FROM OR RELATING TO THE SERVICES (REGARDLESS OF THE FORM OF ACTION OR CLAIM, E.G. CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL THEORY) IS LIMITED TO $1. HEALTH FUNCTION’S AFFILIATES, PROVIDERS AND PARTNERS HAVE NO LIABILITY WHATSOEVER ARISING FROM THE WEBSITE OR SERVICES.

In some locations applicable law may not allow certain of the limitations described above, in which case such limitations will apply to the maximum extent allowed by such applicable law.

These Terms of Use shall remain in full force and effect while you use the the Services. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICES (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SERVICES OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.

If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.

Modifications and Interruptions

We reserve the right to change, modify, or remove the contents of the Services at any time and for any reason at our sole discretion without notice. However, we have no obligation to update any information on the Services. We also reserve the right to modify or discontinue all or part of the Services without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Services.

We cannot guarantee the Services will be available at all times. We may experience hardware, software, or other problems, or need to perform maintenance related to the Services, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Services at any time, or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Services during any downtime or discontinuance of the Services. Nothing in these Terms of Use will be construed to obligate us to maintain and support the Services or to supply any corrections, updates, or releases in connection therewith.

Corrections

There may be information on the Services that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Services at any time, without prior notice.

User Data

We will maintain certain data that you transmit to the Services for the purpose of managing the performance of the Services, as well as data relating to your use of the Services. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Services. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.

Governing Law and Disputes

The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these terms of Use or your purchase of any element of the Services.

These Terms of Use shall be governed by and construed in accordance with the laws of New Zealand, without regard to the principles of conflicts of law of any jurisdiction.

Both parties shall use their best efforts to settle by amicable negotiations any disputes which may occur between them arising out of or relating to these Terms of Use; the existence, validity, termination, interpretation of any term hereof; and disputes regarding your use of the Services.

If the parties are unable to settle any dispute by negotiation within 21 calendar days, then any party may invite the chairperson of the New Zealand Chapter of Lawyers Engaged in Alternative Dispute Resolution to appoint a mediator to enable the parties to mediate and settle the dispute.

All discussions in the mediation will be without prejudice and will not be referred to in any later proceedings.

If the dispute is not resolved within a further 30 calendar days after the appointment of a mediator, any party may then require the dispute to be referred to arbitration.

If this clause is invoked the dispute will be referred to arbitration by a sole arbitrator in accordance with the Arbitration Act 1996 and the arbitration will take place in Nelson, New Zealand.

The arbitral award shall be final, binding and non-appealable. The Arbitrator’s award must be reasoned and issued in writing within thirty (30) days of the hearing, unless otherwise agreed to by Health Function and you.

Both parties will share the cost of mediation and/or arbitration equally.

Notwithstanding the foregoing, in recognition of the irreparable harm that a breach by you of Health Functions’s intellectual property rights would cause, Health Function may seek an injunction against such violation or breach in a court of competent jurisdiction.

General

English language shall govern all documents, notices, and interpretations of these Terms of Use. Sections titled Precautions, Indemnity, Content and Warranty Disclaimer, Limitation of Liability and Governing Law and Disputes shall survive and remain in effect after your license to use the Services has terminated for any or no reason.

Health Function’s failure to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision unless acknowledged and agreed to by Health Function in writing. These Terms of Use constitute the entire agreement between you and Health Function with respect to the subject matter herein and supersede any and all prior or contemporaneous oral or written agreements. You may not assign this agreement to any other party and any attempt to do so is void.